Commonly Misunderstood Terminology

When deciding to pursue a medical malpractice claim, your attorney will use various terms you are most likely not familiar with. It is beneficial for you, as the client, to understand what these specific legal terms are, what they mean, and how they may apply to your case.

Negligence & Malpractice

Medical malpractice and negligence are synonymous and occur when a hospital, physician, or other health care professional, through a negligent act or omission, causes injury to a patient. The negligence might be the result of errors in diagnosis, treatment, or aftercare.

Medical malpractice is commonly used in lay terms, while medical negligence is the technical term and will always be used by attorneys, judges, and juries.

At Miller and Wagner, we often use medical malpractice with our clients and in our publicly facing literature, however, in the legal context of working with other attorneys, negotiating claims, or at trial – medical negligence is the default, legal term used.

Statute of Limitations

State laws limit the amount of time an injured patient has to file a claim for medical malpractice. These time limits are known as statutes of limitations, and they vary by state. They are also very complicated and fact-dependent. In Oregon, most cases must be filed within two years of the medical malpractice injury.

Pediatric malpractice cases differ because injuries may not present until certain developmental milestones have been reached. As a result, the family of the child has up to five years, depending on the circumstances, type of injury, and age of the child, to file a claim. 

Standard of Proof

The standard of proof is the amount and type of admissible evidence required to prove it is more likely than not that the patient was injured by negligence.

In a medical malpractice case, the standard of proof is based on the preponderance of evidence, which is the least demanding standard. In a medical malpractice case, the testimony of medical expert witnesses will largely determine whether or not the standard of care was met.

In a criminal trial, the prosecution must prove the defendant guilty, beyond a reasonable doubt, which means the defendant committed each element of the crime and there is substantial evidence to prove it. Beyond a reasonable doubt is the most demanding standard within legal proceedings.

There are a few key elements that go into establishing the standard of proof in a malpractice case, they are as follows:

  • Proof of the physician’s sub-standard (negligent) care
  • Link between physician’s negligence and patient’s injury
  • Quantifiable proof of patient’s harm (damages)
  • Proof “By a Preponderance of the Evidence”

Punitive damages

When a patient is harmed due to medical malpractice, there are a lot of feelings that may come up, including anger, inciting a desire to punish the offending party and prompting them to want to pursue punitive damages.

However, for a court to go beyond compensation and require punitive damages, depends on intentional or particularly reckless behavior on the part of the healthcare worker or physician. This kind of conduct may even warrant the filing of criminal charges, but in any case, punitive damages would likely be appropriate in a civil action.

A healthcare worker or physician who did not intentionally harm a patient, will not be subject to punitive damages, regardless of how egregious an error may seem to the injured party.

Economic Damages

Economic damages are calculated by considering the earning potential of a person’s career over a lifetime. These damages can also include both the cost of medical treatment, rehabilitation, and legal fees. 

Non-Economic Damages

Non-Economic damages are separate from a person’s financial earnings. 

Examples of Non-Economic Damages include:

  • Pain and suffering. Injury or death to a loved one can not only be financially costly, but emotionally distressing, traumatic, and physically painful. 
  • Disfigurement. One of the lasting damages of physician malpractice or negligence can be permanent disfigurement. 
  • Loss of ability to enjoy life. There are many ways that physician negligence can impact a person’s life, one of which is the loss of the possibility of enjoying life. An injured patient may argue that due to trauma, they are no longer able to leave the house or that the physical impacts prevent them from being able  to care for or have children. 
  • Loss of consortium. A person may be compensated for the loss of affection, conjugal relations, companionship, and other relationship contributions due to the injury or death of a spouse.

Wrongful Death

Wrongful death refers to the death of an individual directly caused by negligent care of a healthcare worker. It is the immediate family members of the deceased patient who must seek a wrongful death claim to obtain compensation for their emotional and financial damages. 

Jury instructions

The judge must instruct the jury on which laws should guide its deliberations and are applicable to the case. The judge reads the instructions to the jury before they are released to begin their deliberations. This is commonly referred to as the judge’s charge to the jury.

In giving the instructions, the judge will state the issues in the case and define any terms that may not be familiar to the jurors. They will discuss the standard of proof that jurors should apply to the case: beyond a reasonable doubt in a criminal case and preponderance of the evidence in a civil case. The judge may read sections of applicable laws.

The judge will advise the jury that it is the sole judge of the facts and that it must, alone, determine the credibility of witnesses. They will note that the jurors are to base their conclusions on the evidence as presented in the trial and that the opening and closing arguments of the lawyers are not evidence. Sometimes judges will explain what basic facts are in dispute and what facts do not matter to the case.

The judge will point out that their instructions contain the interpretation of the relevant laws that govern the case, and that jurors are required to adhere to these laws in making their decision, regardless of what the jurors believe the law is or ought to be. In short, the jurors determine the facts and reach a verdict, within the guidelines of the law as determined by the judge.


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